Mmm . . . Free Samples (Innovation 1a)

Glenn Otis Brown, March 11th, 2003

This post is the first in a series that will roll out, over the course of this week, potential innovations to our licenses for your review and comment.

Mmm . . . Free Samples

Right now, our menu of license options lets authors choose between prohibiting or encouraging a) commercial re-uses of their work, and b) transformations of their work.

It does not, however, let an author choose c) to encourage commercial transformations of their work while d) prohibiting commercial verbatim copying of their work.

That is, if you like the idea of people making a remix of your song, or re-cutting your film, but you don’t want them simply to sell whole, unaltered copies of your work, our licenses today may not perfectly fit your needs.

The “noncommercial” provision is a blanket restriction, treating all commercial uses — no matter how innovative — the same.

Many folks like the idea of inviting others to build on their work; and they really like the notion of a copyright regime that would recognize and honor that practice. (Of course, copyright today doesn’t.)

Don Joyce of legendary culture jammers Negativland nailed both of these concepts in an early conversation with us on the subject:

“This would be legally acknowledging the now obvious state of modern audio/visual creativity in which quoting, sampling, direct referencing, copying, and collaging have become a major part of modern inspiration. [A sampling option would] stop legally suppressing it and start culturally encouraging it — because it’s here to stay. That’s our idea for encouraging a more democratic media for all of us, from corporations to the individual.”

In this spirit of democratic media and collaboration, we offer this draft provision for your comment and improvement. You are all Kings and Queens of Copyright: What would proper “sampling” and “collaging” look like in your world? How might you build on or re-mix our formulation below?

You may not exercise any of the rights granted to You in this license in any manner (except as described immediately below) that is primarily intended for or directed toward commercial advantage or private monetary compensation.

You may exercise the right to create and reproduce Derivative Works in a manner primarily intended for or directed toward commercial advantage or private monetary compensation — provided that the Derivative Work(s) constitute a good-faith “sampling,” “collage,” and/or “mash-up,” as appropriate to the medium, genre, and market niche.

Now, we anticipate that the phrase “as appropriate to the medium, genre, and market niche” might prompt some anxiety, as it leaves things relatively undefined. But there’s more method here than you might expect: The definition of “sampling” or “collage” varies across different media. Rather than try to define all possible scenarios (including ones that haven’t happened yet) — which would have the effect of restricting the types of re-uses to a limited set — we took the more laissez faire approach.

This sort of deference to community values — think of it as “punting to culture” — is very common in everyday business and contract law. The idea is that when lawyers have trouble defining the specialized terms of certain subcultures, they should get out of the way and let those subcultures work them out. It’s probably not a surprise Creative Commons likes this sort of notion a lot.

14 Responses to “Mmm . . . Free Samples (Innovation 1a)”

The economic jeopardy of the licenses’ ambiguity should be addressed. When placing sampling-derivation licensure on material, the artist faces the scenario where their work will become financially lucrative for another artist.

It seems nearly impossible to guard against this scenario, as culture shows us material, from the most mainstream to the most obscure, that has been recontextualized via sampling or collage and has lucratively entered mainstream culture.

The ambiguity I am most uneasy about is the decision of commercial intent. How is one to argue that the re-use product of another is for “commercial advantage.” Mash-ups are cited as an acceptable use – surely, if Soulwax could have profited (outside of the bootleg industry) from their Nirvana mash-up, they would have, right?

This license seems fit for artists who want to have their cake and eat it too. It is the ambiguity of the claims that make me a little worried – determining commercial motivation requires more language than this clause contains. That, or it requires artists willing to forgo this license and face the economic jeopardy of allowing their work’s commercial derivation.

I agree with Lorenzo & Wayne above. Perhaps a good place to start would be with the very simple definitions similar to those already available, such that it could fit in with those easily.

What do we actually want? Whether by sampling, collage or any method we seem to be talking about a Derivative Works Only situation (commercial or not, as Meredith has posted). So we could start by saying that:

Derivative Works Only. The licensor permits others to copy, distribute, display and perform only altered copies of the work — not unaltered copies of the work.

That would suggest that part 3 of the license includes the ‘to create and reproduce Derivative Works’ part. Similiarily under restirictions you could have:

‘You may not exercise any of the rights granted to You in this license in any manner (except within a deriviative work) that is primarily intended for or directed toward commercial advantage or private monetary compensation.’

Is the addition of the method of creating the derivation useful or desirable?

Also, could there be a problem in confusing the creator of the derivative work – how bound are they to keep the same terms for their work? Must they allow their commercial work to be used commercially in turn?

I read the ‘Attribution-NonCommercial-ShareAlike 1.0′ and ‘Attribution-ShareAlike’ licenses. I am a photographer and yet the licenses contain language refering to audio works and performance. I would have thought that this would have been taken into account when I clicked photo/illustration. Will you be altering the licenses to specifically apply to photos and illustration? Can I reproduce the license omitting those parts that do not apply to photos and still have a Creative Commons license?

Also can I allow public display on a website by a business under the NonCommercial license as long as they do not charge for viewing or downloading? or would this have to be negotiatied separately?

Could you have included in future licenses a section for ‘Limited’ or ‘Restricted’ Commercial uses, where common limitations could be included in the license?

I think that perhaps I live in a fantasy world, but I would really like to see an alternative music recording industry where artists can download individual parts from digital master files for remixing, collage etc. Technological developments have granted a power to artists to create sounds in some really bizarre ways – for example, I have a really old tracker program that runs on a Commodore Amiga (yes, I still use it) and I can load any Amiga file into it, so I can use pictures as sounds.

Anyway, I digress, what I really wanted to say is that in a musical climat where all the notes have been played, all the chord discovered, we need to start looking for creativity in new places. We think of musical creativity in terms of notes – well, the technology today allows us to control a lot more than just notes, why can’t we see music in terms of phrases – inter-layered contexts rather than just simply tonal?

Whilst I am totally in favour of the goals of the Creative Commons, I don’t think that realistically it provides an alternative in terms of business models. What is needed is for artists to first of all take control of their own sound. There are plenty of online music distribution sites (OMDS) available, although admittedly, most of them seem to have started to subscribe to some mainstream recording industry ethic, but everyone has to financially survive, right? There are some really good sounds coming out of these sites, perhaps if more artists started posting individual song parts on their sites for other artists to use then the practice would become a little more ingrained.

The problem is that outside of a small niche arena, appropriative practices are regarded as plagiarism or ripping off. Music courses don’t teach that appropriation is part and parcel of being a creator. This is not something that will change overnight, but rather a process that has to work from the ground upwards. You can’t expect the law to reflect what is not acknowledged in the culture of the creators themselves. Artists themselves have to start expressing politcally what it is they do, what they contribute etc.

I once studied experimental film in Buffalo, NY. I collected a shopping bag of TV commercials from WKBG studios they were going to throw out. I was looking for “subliminal” artefacts. If I strung all 30 second films together could I be sued? If I took parts of them would I have to cite the makers, unknown, as they didn’t come with “roll the credits” options. Or would they just be “found art” and I could do whatever with them, Fluxus art, the remains of the day? If I use that lap dissolve from the Comet can to a woman’s head, could I go Warhol free?

I am currently researching and writing a law review comment on fair use and the defense of the mash-up. The core premise is actually differentiating the traditional standards of sampling or collage (which have previously failed in the fair use analysis). Courts seem to blur the distinction between parody and criticism/comment, take Roy Orbison v. 2 live crew for example. I am arguing that the first generation of sampling cases failed because, unlike negativland they too often were not clear enough cases of crictism and were more like appropriation. With the mash-up, the message and the medium and inseparable, not interdependent. The criticism is the 2 works in juxtaposition with each, which I argue is different, at least under a fair use analysis, from a sampling situation.

Anyway, when I am finished and it hopefully gets published I will post a link too it. I would appreciate any feedback/thoughts/etc. if you think I’m coming at this all wrong.

I am glad to see this. And it seems prudent to leave the definition of “sampling” fairly open to interpretation. Often the smallest signal difference–a moustache on the mona lisa, a booker t song slightly slowed down–is enough to transform what might seem like an egregious example of sampling into a powerful and distinctive derivative work. A license such as this one encourages and legitimates the kind of intertextual collaboration that has only been outlawed in the last century, turning a mere collection of expressive media into a true creative commons.

I can see such a license appealing to many people who currently find themselves and their expression locked out of the public conversation. And, as someone putting his “own” content out there, I would like to have the option to make such materials legally available for others to riff on.

While you’re working on this, I’d love to see a *noncommercial* derivative works only license as well. There’s a whole flourishing subculture of fanwork (fan fiction, fan art, fan videos) that exists in legal limbo at the moment, and this could really help.

As for definitions, I am not a lawyer, but some of the things that seem to me to apply to both sampling/collage and fanwork would be:

Only uses a fraction of the original work

Adds to that significant content that is either original or drawn from other sources

Tells a new/different story, or reinterprets the existing story in a new light. (Maybe that should be “message”, to cover non-narrative art?)

Is recognizable as a different work.

Gives proper credit/attribution.

None of those really get into the specifics of technique or medium, and obviously they’re all interpretable, but I think some kind of meta-definition of where the boundary is would be helpful.

I think that the formulation is not clear, especially the second part. You should find easier words to express concepts that also foreign people should be able to understand without a dictionary…
Good work :)